G. P. Mathur, J. - (1.) Leave granted.
(2.) This appeal, by special leave, has been preferred against the judgment and order dated 8.10.2004 of Bombay High Court by which the revision preferred by the respondent was allowed and the order dated 12.8.2004 passed by the learned Sessions Judge, Dadra and Nagar Haveli, Silvassa, summoning Shri S.P. Marwah, the then Collector, Dadra and Nagar Haveli, Silvassa under Section 311, Cr. P.C. was set aside.
(3.) One Damabhai Lasyabhai Choudhary lodged an FIR at 8.30 p.m. on 29.4.1996 at P.S. Khanvel alleging that on the instigation of accused A-7, A-8 and A-9 accused A-1 to A-6 had assaulted the deceased Bapjibhai Bhoya and caused injuries to some others. The respondent herein Fatehsinh Mohansinh Chauhan is A-7 and he was assigned the role of instigation Maro Maro, Pakdo Pakdo. After usual investigation charge sheet was submitted against all the nine accused and the case was committed to the Court of Session. In his statement under Section 313, Cr.P.C. which was recorded after close of the prosecution evidence, the respondent took a plea of alibi and submitted that he is a prominent member of a political party and at the time of the incident, he was present in the chamber of Shri S.P. Marwah, Collector, Dadra and Nagar Haveli, Silvassa, as a meeting had been called there. The respondent examined two witnesses, viz., DW.1 O.P. Misra, Deputy Collector and DW.2 R.N. Parmar, Executive and Sector Magistrate, Dadra, in support of his plea of alibi that he was present in the chamber of Shri S.P. Marwah. The Special Public Prosecutor, thereafter, moved an application, purporting to be one under Section 311, Cr.P.C., praying that Shri S.P. Marwah, the then Collector of Dadra and Nagar Haveli, Silvassa and currently posted as Director, Jal Nigam Board, New Delhi, may be summoned and examined as a witness. The application was opposed by respondent No.7 by filing a written reply on the ground, inter alia, that he had raised a plea of alibi at the very beginning, which was very well known to the investigating agency, but no investigation in that direction had been made and the defence taken by him in his statement under Section 313, Cr.P.C. was not a sudden or unexpected one. It was also submitted that the prosecution was not entitled to fill in a lacuna by moving an application under Section 311, Cr.P.C for the purpose of summoning a witness. The learned Sessions Judge, after referring to the authorities cited by the counsel for the parties, allowed the application moved by the Special Public Prosecutor by the order dated 12.8.2004 and the relevant part of the order which has a bearing on controversy in dispute is being reproduced below :- "The gist of all these authorities is that the best available evidence should be brought before the Court to prove point in issue. However, it is left either to the prosecution or to the defence to establish its respective case by adducing the best available evidence. Under Section 311 of the Code of Criminal Procedure it is the duty of the Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, provisions of Section 311 of the Code can be invoked by exercising judicial discretion at any stage of enquiry, trial or other proceeding. This Court is conscious of the fact that matter is very old and is lingering on some or the other ground since long. But this alone will not be sufficient to reject an opportunity to the prosecution particularly when the defence has kept behind the best available evidence of the then Collector who had convened the meeting according to accused No.7 in which he was present. Moreover, it will not cause any prejudice to accused No.7 as alibi is his own defence. He will have an opportunity to cross-examine the witness. Thus in order to find out the truth, evidence of the then Collector is necessary. In the interest of just and fair decision application is to be allowed." ;